B-146301, MARCH 29, 1962, 41 COMP. GEN. 620

B-146301, MARCH 29, 1962, 41 COMP. GEN. 620

BIDDERS - RIGHT TO HEARING THE REJECTION OF A BID, WHICH WAS NOT UNRESPONSIVE ON ITS FACE, ON AN ASSUMPTION THAT THE ENGINE OFFERED BY THE LOW BIDDER WOULD NOT MEET THE REQUIREMENTS IN THE SPECIFICATIONS, WHICH ASSUMPTION WAS BASED ON CONFLICTING INFORMATION RECEIVED BY THE CONTRACTING OFFICER AT HIS REQUEST FROM THE MANUFACTURER WITHOUT COMPLETE KNOWLEDGE AS TO THE REASON FOR THE REQUEST AND WITHOUT THE BIDDER BEING AFFORDED AN OPPORTUNITY TO BE HEARD BEFORE REJECTION, IS NOT PROPER.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, MARCH 29, 1962:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 6, 1962, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE, AND PRIOR CORRESPONDENCE FROM YOUR ADMINISTRATION CONCERNING THE PROTEST OF THE WALTER MOTOR TRUCK COMPANY WITH RESPECT TO THE REJECTION OF ITS BID ON ITEM 21 OF INVITATION FOR BIDS NO. FN-3G-33444-A-3-13-61.

ITEM 21 OF THE INVITATION REQUESTED BIDS ON ONE TRUCK, 54,000 POUNDS MINIMUM GROSS VEHICLE WEIGHT; DIESEL ENGINE DRIVEN; HIGH SPEED PUSH TYPE SNOW PLOW; 4 X 4; IN ACCORDANCE WITH FEDERAL SPECIFICATION KKK-T 706A AND THE ATTACHED SCHEDULE "D.' THE INVITATION REQUIRED THAT ANSWERS TO A QUESTIONNAIRE ( FORM FS-130) BE SUBMITTED FOR THE ITEM.

THE BIDS RECEIVED WERE OPENED ON MARCH 20, 1961. THE INFORMATION SUPPLIED BY THE WALTER MOTOR TRUCK COMPANY IN THE REQUIRED QUESTIONNAIRE ACCOMPANYING ITS BID INDICATED THAT THE ENGINE MET SPECIFICATION REQUIREMENTS, ALTHOUGH THERE WAS SOME QUESTION ABOUT THE ADEQUACY OF THE ENGINE HORSEPOWER IN VIEW OF THE MAXIMUM GOVERNED SPEED LISTED. THE SPECIFICATIONS REQUIRED THAT THE ENGINE SPEED BE GOVERNED AS RECOMMENDED BY THE ENGINE MANUFACTURER, AND ALSO THAT IT DEVELOP NOT LESS THAN 320 BHP AT NOT MORE THAN 2300 RPM. WALTER STATED IN THE QUESTIONNAIRE THAT THE ENGINE WOULD DEVELOP 330 MAXIMUM BHP AT 2300 RPM, BUT THAT THE MAXIMUM GOVERNED SPEED WAS ONLY 2100 RPM, AT WHICH SPEED THE NET BHP WOULD BE 275. THE FEDERAL AVIATION AGENCY, FOR WHOM THE EQUIPMENT WAS BEING PURCHASED, EXPRESSED DOUBT THAT THE ENGINE OFFERED MET SPECIFICATIONS AND INDICATED RELUCTANCE TO ACCEPT A NEW TRANSMISSION WHICH HAD NOT BEEN PROVEN IN USE. GSA HAD NO LITERATURE ON FILE FOR THE TRANSMISSION OFFERED AND THE DATA IT HAD FOR THE GMC DIESEL ENGINE MODEL 8V-71 DIFFERED FROM THE INFORMATION FURNISHED BY WALTER IN THE QUESTIONNAIRE. IN VIEW THEREOF, THE CONTRACTING OFFICER SENT TELEGRAMS TO GMC DETROIT DIESEL ENGINE DIVISION AND TO GMC ALLISON DIVISION REQUESTING INFORMATION ON THE ENGINE AND TRANSMISSION.

THE SPECIFICATIONS REQUIRED THE TRANSMISSION TO HAVE AN INPUT TORQUE CAPACITY SUFFICIENT TO TRANSMIT 110 PERCENT OF THE MAXIMUM NET ENGINE TORQUE. WALTER'S QUESTIONNAIRE HAD STATED THE TRANSMISSION HAD A "RATED" TORQUE INPUT CAPACITY OF 700 LB-FT. AND A MAXIMUM INPUT TORQUE CAPACITY 780 LB-FT. THE TELEGRAM SENT TO ALLISON BY GSA ASKED WHETHER THE MODEL 4460 TRANSMISSION WOULD BE RECOMMENDED FOR USE WITH A 54,000 LB. GVW 4 X 4 HIGH SPEED SNOW PLOW TRUCK AND A DIESEL ENGINE DEVELOPING 700 LB-FT. NET TORQUE. ALLISON REPLIED THAT IT CERTAINLY WOULD RECOMMEND THE TRANSMISSION FOR SUCH USE WITH A DIESEL ENGINE "NOT EXCEEDING 700 FT. LBS. NET TORQUE AT FLYWHEEL OR 275 HORSEPOWER.' SINCE WALTER HAD STATED THAT THE NET TORQUE OF THE ENGINE WAS 700 LB FT, IT THUS APPEARED THAT THE TRANSMISSION MIGHT NOT HAVE INPUT TORQUE CAPACITY EQUAL TO 110 PERCENT OF THE NET TORQUE DEVELOPED BY THE ENGINE, ALTHOUGH, AS STATED, WALTER HAD SPECIFIED A MAXIMUM INPUT TORQUE CAPACITY OF 780 LB-FT.

PARAGRAPH 4A, PAGE 64, OF THE SPECIFICATIONS REQUIRED THE ENGINE TO HAVE A MINIMUM GROSS TORQUE OF 800-FOOT POUNDS, TO DEVELOP "NOT LESS THAN 330 (REDUCED TO 320 BY SPECIAL NOTICE NO. 2) BHP AT NOT MORE THAN 2300 RPM," AND TO HAVE THE RPM GOVERNED AS RECOMMENDED BY ITS MANUFACTURER. IN ITS ANSWERS TO THE QUESTIONNAIRE SUBMITTED WITH ITS BID, WALTER HAD STATED IT WAS BIDDING ON THE GMC DIESEL ENGINE, MODEL 8V-71. HOWEVER, IT APPEARS THAT THE MODEL 8V-71 DIESEL ENGINE IS AVAILABLE IN BOTH AN INDUSTRIAL VERSION AND A TRUCK MODEL, WHICH DIFFER SOMEWHAT IN CHARACTERISTICS. ALSO, EITHER VERSION IS AVAILABLE WITH S 60, OR S-70 INJECTORS WHICH INCREASE THE HORSEPOWER OVER THE STANDARD S 55 INJECTORS. WALTER'S BID DID NOT INDICATE WHETHER IT WAS OFFERING THE INDUSTRIAL OR THE TRUCK VERSION, NOR WHICH TYPE OF INJECTORS WERE TO BE USED. THE TELEGRAM SENT BY THE CONTRACTING OFFICER TO DETROIT DIESEL REQUESTED INFORMATION CONCERNING THE MODEL 8V-71 ENGINE, BUT IT DID NOT SET FORTH THE REQUIREMENTS OF THE SPECIFICATIONS. THE TELEGRAM ASKED FOR GROSS AND NET HORSEPOWER AT RPM, GROSS AND NET TORQUE AT RPM, AND THE MAXIMUM GOVERNED SPEED. THE TELEGRAPHIC REPLY RECEIVED FROM DETROIT DIESEL GAVE THE MAXIMUM BHP AS 336 AT 2300 RPM, THE RATED BHP AS 290 AT 2100 RPM, THE MAXIMUM TORQUE AS 805-POUND FEET AT 1200 RPM, AND TORQUE AS 725-POUND FEET AT 2100 RPM. A BROCHURE WHICH FOLLOWED THE TELEGRAM COVERED THE TRUCK VERSION OF THE MODEL 8V-71, AND STATED SPECIFICALLY THAT THE MAXIMUM BHP WAS 336 AT 2300 RPM. IN THE QUESTIONNAIRE WALTER HAD LISTED THE MAXIMUM BHP AS 330 AT 2300 RPM. THE BROCHURE ALSO CONTAINED A CHART SHOWING BHP UP TO 2100 RPM, ALTHOUGH THE CHART DID NOT INDICATE WHETHER THIS WAS WITH THE S-55, S 60, OR S-70 INJECTORS. THE BROCHURE ITSELF DID NOT EVEN MENTION THAT INJECTORS OTHER THAN THE S-55 OR S-60 WERE AVAILABLE, ALTHOUGH IT DID STATE THAT "ADDITIONAL OPTIONAL EQUIPMENT" WAS AVAILABLE. PROJECTION OF THE CURVE SHOWN ON THE CHART INDICATED A BHP OF ONLY ABOUT 300 AT 2300 RPM. THERE WAS THUS AN INCONSISTENCY BETWEEN THE CHART AND THE 1HDR XXXXX00001-003 AFLITEDATA69160-000 SPECIFIC STATEMENT THAT THE BHP WAS 336 AT 2300 RPM. IT MAY ALSO BE NOTED THAT THE CHART SHOWED ,RATED" RATHER THAN "MAXIMUM" BRAKE HORSEPOWER. NO EFFORT APPEARS TO HAVE BEEN MADE BY THE CONTRACTING OFFICER TO SEEK CLARIFICATION OF THE ABOVE- MENTIONED INCONSISTENCY EITHER FROM DETROIT DIESEL OR FROM WALTER, AND IT WAS RESOLVED BY ACCEPTING THE PROJECTION OF THE CHART CURVE RATHER THAN THE SPECIFIC STATEMENT IN THE BROCHURE THAT THE MAXIMUM BHP WAS 336. WALTER'S BID WAS THEREUPON REJECTED ON THE ASSUMPTION THAT THE ENGINE IT WAS OFFERING FAILED TO SUPPLY THE REQUIRED MINIMUM OF 320 BRAKE HORSEPOWER.

WE BELIEVE THIS ACTION WAS IMPROPER. THE INFORMATION RECEIVED ON THE ENGINE WAS CONFLICTING, AND WAS GIVEN WITHOUT COMPLETE INFORMATION CONCERNING THE REASON FOR THE GSA INQUIRY. IN SUCH CIRCUMSTANCES, IT IS OUR VIEW THAT THE BIDDER HIMSELF IS ENTITLED TO AN OPPORTUNITY TO BE HEARD BEFORE HIS BID, WHICH IS NOT UNRESPONSIVE ON ITS FACE, IS REJECTED. GSA'S FAILURE TO DO THIS CONTRASTS WITH ITS ACTION IN MAKING AWARD TO ANOTHER BIDDER WHOSE BID WAS NONRESPONSIVE ON ITS FACE IN CERTAIN PARTICULARS.

THE INFORMATION FURNISHED BY THE SUCCESSFUL BIDDER IN ITS QUESTIONNAIRE SHOWED A FAILURE TO MEET THE SPECIFICATIONS IN THREE RESPECTS. THE AXLE OFFERED MET THE SPECIFICATIONS OTHERWISE, BUT THE GEAR RATIO SPECIFIED WOULD NOT MEET THE ROAD SPEED REQUIREMENT. GSA CONSIDERED THIS AN APPARENT AMBIGUITY WHICH COULD BE CORRECTED AT NO EXTRA COST SINCE MOST REAR AXLES FOR HEAVY TRUCKS ARE AVAILABLE IN SEVERAL OPTIONAL GEAR RATIOS TO SATISFY VARYING CUSTOMER NEEDS AS TO SPEED AND POWER DELIVERED TO THE REAR WHEELS. THIS BIDDER PROPOSED TO FURNISH ITS OWN MODEL REAR AXLE IN CONNECTION WITH WHICH IT STATED THAT THE MAXIMUM ALLOWABLE LOAD ON THE TIRES AT THE GROUND WAS 35,000 POUNDS. ON THE BASIS OF OTHER DATA SHOWN ON THE QUESTIONNAIRE, THE REAR AXLE WOULD BE OVERLOADED BY 1,000 POUNDS. GSA REPORTS THAT ENGINEERING DATA IT HAD ON FILE FOR THE PARTICULAR MODEL AXLE SHOWED A RATED LOAD CAPACITY AT GROUND OF 45,000 POUNDS, AND IT THEREFORE CONSIDERED THE RATING OF 35,000 POUNDS TO BE A TYPOGRAPHICAL ERROR. THE SPECIFICATIONS REQUIRED A 1,200-WATT GENERATOR. THE SUCCESSFUL BIDDER'S QUESTIONNAIRE SHOWED IN THE SPACE PROVIDED FOR STATING THE MANUFACTURER'S MODEL THAT IT PROPOSED TO FURNISH A GENERATOR MADE BY LEECE-NEVILLE, MODEL " ALTERNATOR-100.' HOWEVER, IN THE SPACE SPECIFICALLY REQUIRING A STATEMENT OF THE GENERATOR'S CAPACITY IN AMPERES, THE BIDDER STATED "50 AT 12 VOLTS.' GSA REPORTS THAT THE LEECE-NEVILLE " ALTERNATOR-100" IS A REFERENCE COMMONLY USED BY THE TRADE TO DENOTE ANY ONE OF SEVERAL MODELS WHICH HAVE A RATED OUTPUT OF 100 AMPERES; AND THAT LEECE-NEVILLE DOES NOT MANUFACTURE AN ALTERNATOR IDENTIFIED AS " MODEL 100.' THE BID WAS INTERPRETED TO MEAN THE BIDDER PROPOSED TO FURNISH A LEECE-NEVILLE ALTERNATOR HAVING A RATED OUTPUT OF 100 AMPERES AT 12 VOLTS, WHICH WOULD PRODUCE THE REQUIRED 1,200 WATTS. WE BELIEVE THIS INTERPRETATION WAS QUESTIONABLE IN VIEW OF THE BIDDER'S SPECIFIC STATEMENT THAT THE CAPACITY OF THE GENERATOR WAS 50 AMPERES AT 12 VOLTS, WHICH WOULD PRODUCE ONLY 600 WATTS.

CONSIDERABLE ADDITIONAL INFORMATION WAS FURNISHED BY WALTER CONCERNING THE CHARACTERISTICS OF THE ENGINE AND TRANSMISSION AFTER IT LEARNED THAT ITS BID HAD BEEN REJECTED AS NONRESPONSIVE AND AWARD MADE TO ANOTHER BIDDER. WHILE THE MATTER IS NOT FREE FROM DOUBT, IT APPEARS POSSIBLE THAT THE ENGINE AND TRANSMISSION OFFERED BY WALTER WOULD IN FACT MEET THE SPECIFICATION REQUIREMENTS. WE DO NOT PROPOSE TO DECIDE THIS QUESTION.

IN VIEW OF THE FACT THAT THE TRUCK IN QUESTION HAS LONG SINCE BEEN DELIVERED AND PAID FOR, WE BELIEVE IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO TAKE ANY FURTHER ACTION IN THE MATTER. WE DO EXPRESS THE OPINION, HOWEVER, THAT IF AMBIGUITIES IN ONE BID ARE RESOLVED IN THE BIDDER'S FAVOR, AMBIGUITIES OR UNCERTAINTIES CONCERNING ANOTHER BID SHOULD NOT BE RESOLVED AGAINST THAT BIDDER WITHOUT FIRST AFFORDING HIM AN OPPORTUNITY TO SHOW THAT HIS BID IS IN FACT RESPONSIVE.